By the Court,
Leonard, J.,on rehearing:
Although admitting that it is in the power of this court to modify a judgment upon grounds not taken by counsel, and that it is its duty to decide cases according to law, “ no matter what may be the argument of counsel,” it is asserted in the petition for a rehearing that “ appellant did not advance or maintain the proposition in this court that he had the right to receive payment of the eight-hundred-dollar note without proving his claim against the estate as required by law.” Although what we said upon this point was stated in an answer to appellant’s claim that the acts of U. Smith could not be ratified because they were unlawful, still counsel is mistaken. (See appellant’s brief, page 36, and his brief in reply, page 2; respondent’s brief, pages 28, 33, 34.)
It is also, claimed that this question was not considered or discussed in the court below. The arguments of counsel are not before us, but the instructions given and refused are. By respondent’s instructions the jury were told that appellant was never a creditor of said estate, and that they had no right to make any deduction from the amount of rents collected by U. Smith for or on account of any debt which Adams owed appellant; that if they found for plaintiff they must leave entirely out of consideration any debt due from Adams to appellant, *279as the plaintiff herself had no right to pay such debt; that they were only to determine, first, what sum, if any, U. Smith collected; second, what-, sum U. Smith paid for ground-rents or other matters which respondent had the right to pay; and, third, if they found that U. Smith collected anything above such payments, it was their duty to find a verdict for respondent for such sums. Those instructions involved appellant’s right to receive as well as respondent’s right to pay. Besides, the court refused to instruct the jury that appellant was entitled to retain the amount of the eight-hundred-dollar note. It is true that appellant did not, so far as the record shows, except to the court’s refusal to give his instructions, but the instruction just referred to shows appellant’s theory in relation to respondent’s right to recover the amount of the note.
The conclusion arrived at, that respondent could not recover the amount of the eight-hundred-dollar note, is attacked as unsound, because, first, it is inconsistent with the pleadings; second, because there was no proof that the note had not been paid, and the burden was upon appellant to show that fact; tlrird, because the record does not show that respondent paid the note voluntarily, but that, on the contrary, it shows the power of attorney to collect rents, and apply them to such payment, was fraudulently obtained; that the statement on motion for a new trial does not specify that the verdict is not sustained by the evidence, for the reason that the amount due appellant should have been deducted from the rents collected; and that the result is the same as though no statement had been filed. Before respondent could recover the amount of rents collected and paid in satisfaction of the eight-hundred-dollar note, she was obliged to plead and prove facts entitling her to receive it back. The power of attorney, and the collection of rents thereunder to the extent of the indebtedness, amounted to payment of the note. The result was precisely the same as though she had taken the amount claimed from moneys belonging to the estate, and paid it to U. Smith in satisfaction of appellant’s demand. The amended complaint, then, shows that she paid the claim. If, in a legal sense, the payment was voluntary, and especially if she did not act under a misapprehension of facts, and was not deceived by representations of U. Smith which were untrue, and which he had no right to make, and if the note was unpaid, then she could not recover to the *280extent of the sum due thereon. If a man pays money in satisfaction of a claim, in order to recover it back, he must allege facts justifying suoh recovery, and if the facts are denied, he must prove them. If he relies upon deception and fraud, he must allege them. If he relies upon prior pa3'ment, he must allege that. If he-alleges simply that he paid a sum of money, and asks that he may recover it back, without showing any good reason in law why it should be returned to him., he states no cause of action.
Let us test the complaint in this case by these principles. It is alleged that respondent was induced to give the power of attorney by reason of appellant’s pretension that ho owned and held a note and mortgage of eight hundred dollars against the estate. Appellant had the right to make the pretension stated if it was true. But it is also alleged that “said pretended claim and demand was and is utterly false and fraudulent, but plaintiff, at the time she executed said instrument, in consequence of the representations of defendant, believed said claim and demand to be just and true.” The allegation that “said claim and demand was utterly false and fraudulent” was only a conclusion of law arising from the fact of prior payment, if it had been made. If prior payment and ignorance of the fact had been alleged, a failure to deny would have been an admission entitling respondent to recover. But appellant was not required to deny the legal conclusion arising from facts not stated, and failure to deny was not an admission that his claim was false or fraudulent; that is to say, that it had been paid.
Much is said in the petition for rehearing about appellant’s denial in his answer “ that he ever pretended to own or hold any claim whatever against Adams or his estate at the time of his death, or at any other time.” That denial was inserted upon the theory that U. Smith was not his agent in the premises, and that he was not responsible for anything done by U. Smith. It was not, nor was it intended to be, an admission that the eight-hundred-dollar note had been paid prior to the giving of the power of attorney. But in an amendment to his answer appellant alleges that, at the date of the note, his brother, U. Smith, had in his possession the sum of eight hundred dollars of appellant’s money, which U. Smith loaned to Adams for and on behal f of, and as the money and property of appellant, and took therefor a promissory note, and as a *281chattel mortgage to secure the same, received an absolute assignment of a leasehold interest in the property described; that no part of said eight hundred dollars, or the interest thereon, had ever been paid as provided in said promissory note and assignment; that on March 12, 1879, all the conditions, covenants, and agreements contained in said promissory note and assignment were broken, and said assignment became absolute, and the title to said leasehold interest vested absolutely in appellant. It is said that appellant’s allegation touching the non-payment of the note was inserted for the purpose of asserting title in himself. That was probably his primary object, though it may not have been the only one. But whatever the truth may be as to. his reasons for alleging non-payment, the fact remains that he did allege it, and it shows, at least, that he did not intend to admit that the note had been paid, and consequently that the claim was false and fraudulent.
Appellant denied that any claim which he ever pretended to own or hold against Adams, or his estate, or respondent, or any claim or equity pretended by any one else to be held or owned by appellant against Adams or his estate, was in any manner false or fraudulent. If we admit that the criticisms of counsel for respondent concerning these denials are just, still the answer is, that any denial was entirely gratuitous. None was required, for the reasons before stated, and the burden was still upon respondent to show herself entitled to recover the eight hundred dollars paid. It was not claimed that appellant’s demand was false or fraudulent, unless the note had been paid prior to the death of Adams. Respondent admitted that Adams received the eight hundred dollars, and gave his note and mortgage. It was not claimed that anything had been paid since the death of Adams. There was not the slightest evidence tending to show payment, except from rents collected under the power of attorney. The only evidence intended to prove payment otherwise was this, in respondent’s testimony: “When I gave Smith the power of attorney, I supposed that the eight-hundred-dollar note was still unpaid, but I have since thought, and now believe, that the whole, or nearly the whole, of it was paid before my husband died.” But not one fact did she state justifying her belief. On the contrary, it was in evidence that the note and mortgage were in the hands of U. *282Smith at the date of the power of attorney, subsequent to the death of Adams. They were in the same hands as late as March, 1882, at the time of the trial on appeal in the first district court. The note and mortgage were presented in court at that time, and there is no proof that any payment had been indorsed thereon. If payments appeared, the fact could have been shown. In an action upon a promissory note, failure to pay must be alleged; but so far as proof is concerned, possession of the note is sufficient, prima facie, to sustain the allegation. (Frish v. Caler, 21 Cal. 74.) And although it was upon respondent to prove payment, yet the facts above stated showed prima facie that payment was not made prior to the death of Adams. And were we wrong in saying that, in a legal sense, respondent paid the note voluntarily? In the first place, the idea that the payment was not voluntary finds no support in the complaint. Of course ignorance of the law on the part of respondent is no excuse, and the only thing charged against appellant is, that respondent was induced to give the power of attorney, or pay the note, by the pretense that it had not been paid. Then, certainly, until she alleges that it was paid otherwise than from the rents, there is no allegation of a false inducement. The principal evidence upon this point was given by respondent herself. She said: “ I am acquainted with Dr. U. Smith. After my husband died, 1J. Smith came to my house every day, and wanted me to be appointed administratrix of my husband’s estate. He told me that my husband was indebted to his brother, Cyrus Smith, in the sum of eight hundred dollars, and that Cyrus Smith had a mortgage on the B Street house for that amount. After I was appointed administratrix, he urged me to give him a power of attorney to collect the rents from the B Street house until he got mone^ enough out of it to pay off his brother’s claim, and then he said he would return it back to me, and I did give him the power of attorney to collect the rents.”
He had a perfect right to do-all that, and say what he did, if the note was unpaid. He did not have the right to retain the power of attorney and collect rents after the note had been satisfied; hence the judgment against appellant.
Respondent was then shown the power of attorney, and .asked by her counsel: “ What representation, if any, did U. Smith make to you to get the power of attorney? What did he *283say?” Appellant’s objections to this question were overruled, and witness answered: “ He told me that he was a good man; that he was a smart business man; and understood the law, and that he could not collect the rents very well from the tenants; that he had no interest in the business except to collect the money for his brother Cyrus, and that his brother was a wealthy man, and that when he got money enough out of the estate to pay off his brother’s claim he would give it back to me. I believed what U. Smith told me. I had confidence in him, and as I had my little children to take care of, — the youngest then was only about four months old, — I was glad to have him attend to the business. Mr. Tuska was my lawyer when I was appointed administratrix, and attended to that business for me; and Dr. U. Smith went to Mr. Tuska and got him to write that power of attorney, and U. Smith sent it down to my house to me by my brother, with word that Mr. Tuska had drawn it, and that it was all right, and for me to sign it, and I did so. I signed it without reading it, because I supposed it was all right, and my brother took it back and gave it to Dr. TJ. Smith.”
The power of attorney, given January 15, 1880, remained unrevoked until December 1, 1881, and in the revocation respondent stated that she annulled and made void the power of attorney made by her in writing, and bearing date the fifteenth day of January, 1880, wherein she “did make, constitute, and appoint U. Smith her true and lawful attorney for the purpose and with the power therein set forth.” Aside from the presumption that respondent knew the law, that is to say, that she had no right to pay the note except as provided by the statute, she did not state that she was in fact ignorant of the statutory provisions, or that U. Smith deceived her in this regard, but on the contrary, she was “ glad to have him attend to the business.”
In our opinion we stated in this connection that “ she acted according to the advice of her counsel in executing the power of attorney.” Wehad reason to suppose that this fact was conceded. It certainly was important. Counsel for appellant stated it in his brief, in this language: “Plaintiff, in her complaint, seeks to excuse her own illegal act and contract, and to justify the bringing and maintenance of this action by pleading her ignorance of the law, and want of legal advice. The proofs show that plaintiff acted advisedly, upon the advice of counsel, and *284with .full knowledge of all the facts. No new fact has come to her knowledge since the execution of the power of attorney. But ignorance of the law, or bad advice of counsel, is no ground for relief against the consequences of her own illegal act and contract.”
This statement, that respondent acted advised, upon the advice of counsel, is in no manner attempted to be denied by counsel for respondent in their lengthy and able brief, although their attention was called to the pages of the transcript sustaining it. But the evidence does show the fact to be as stated. Respondent testified: “ Mr. Tuska was my lawyer when I was appointed administratrix, and attended to that business for me”; and U. Smith stated that “said power of attorney was written by Wal. J. Tuska, the acting attorney of said estate, on or about January 15, 1880.” With this evidence only before us, it is preposterous to ask us to declare that Mr. Tuska was not the attorney of respondent, but was the attorney of U. Smith.
Finally, if it be conceded thatappellantcannotavail himself of the fact that the verdict and judgment are not sustained by the evidence, for the reason that, in the statement, it is not specified that the amount due appellant should have been deducted from the amount of rents collected, still he would be entitled to have that sum deducted from the judgment, or a new trial, by reason of the instructions of the court excepted to and specified in the assignments of error, wherein the jury were charged not to deduct from the rents any sum on account of any debt which Adams owed defendant. -
Rehearing denied.